No prompt arrest of d No Prompt Arrest of Doctors on Medical Negligence

In the Supreme Court of India
Civil Appellate Jurisdiction: Civil Appeal No. 3541 of 2002
Martin F. D'souza …Appellant
Vs
Mohd. Ishfaq ...Respondent
Judgment
Markandey Katju, J.
New Delhi; February 17, 2009
1. This appeal against the judgment of the National Consumer Disputes Redressal Commission,
New Delhi dated 22.3.2002 has been filed under Section 23 of the Consumer Protection Act,
1986.
2. Heard learned counsel for the parties and perused the record.
3. The brief facts of the case are narrated below :
4. In March 1991, the respondent who was suffering from chronic renal failure was referred by the
Director, Health Services to the Nanavati Hospital, Mumbai for the purpose of a kidney
transplant.
5. On or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was under the
treatment of the appellant Doctor. At that stage, the respondent was undergoing haemodialysis
twice a week on account of chronic renal failure. Investigations were underway to find a suitable
donor. The respondent wanted to be operated by Dr. Sonawala alone who was out of India from
1.6.1991 to 1.7.1991.
6. On 20.5.1991, the respondent approached the appellant Doctor. At the time, the respondent, who
was suffering from high fever, did not want to be admitted to the Hospital despite the advice of
the appellant. Hence, a broad spectrum antibiotic was prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis Unit at Nanavati
Hospital on three occasions. At that time, his fever remained between 1010-1040F. The appellant
constantly requested the complainant to get admitted to hospital but the respondent refused.
8. On 29.5.1991 the respondent who had high fever of 1040F finally agreed to get admitted to
hospital due to his serious condition.
9. On 30.5.1991 the respondent was investigated for renal package. The medical report showed high
creatinine 13 mg, blood urea 180 mg. The Haemoglobin of the respondent was 4.3%. The
following chart indicates the results of the study in comparison to the normal range :-
Normal Range
S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. %
Blood Urea 180 mgs. % 10-50 mgs. %
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
10. On 30.5.1991, the respondent was investigated for typhoid fever, which was negative. He was
also investigated for ESR, which was expectedly high in view of renal failure and anemia
infection. Urine analysis was also carried out which showed the presence of bacteria.
11. On 3.6.1991, the reports of the urine culture and sensitivity were received. The report showed
severe urinary tract infection due to Klebsiella species (1 lac/ml.). The report also showed that
the infection could be treated by Amikacin and Methenamine Mandelate and that the infection
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was resistant to other antibiotics. Methnamine Mandelate cannot be used in patients suffering
from renal failure.
12. On 4.6.1991, the blood culture report of the respondent was received, which showed a serious
infection of the blood stream (staphylococcus species).
13. On 5.6.1991, Amikacin injection was administered to the respondent for three days (from 5th to
7th June, 1991), since the urinary infection of the respondent was sensitive to Amikacin. Cap.
Augmentin (375 mg.) was administered three times a day for the blood infection and the
respondent was transfused one unit of blood during dialysis. Consequent upon the treatment, the
temperature of the respondent rapidly subsided.
14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney transplant even though
the respondent had advised him that in view of his blood and urine infection no transplant could
take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant's advice, got himself discharged from
Nanavati Hospital. Since the respondent was suffering from blood and urinary infection and had
refused to come for haemodialysis on alternate days, the appellant suggested Injection Amikacin
(500 mg.) twice a day. Certain other drugs were also specified to be taken under the supervision
of the appellant when he visited the Dialysis Unit.
16. On 11.6.1991, the respondent attended the Haemodialysis Unit and complained to the appellant
that he had slight tinnitus (ringing in the ear). The appellant has alleged that he immediately told
the respondent to stop taking the Amikacin and Augmentin and scored out the treatment on the
discharge card. However, despite express instructions from the appellant, the respondent
continued to take Amikacin till 17.6.1991. Thereafter, the appellant was not under the treatment
of the appellant.
17. On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent received haemodialysis at Nanavati
Hospital and allegedly did not complain of deafness during this period.
18. On 25.6.1991, the respondent, on his own accord, was admitted to Prince Aly Khan Hospital,
where he was also treated with antibiotics. The complainant allegedly did not complain of
deafness during this period and conversed with doctors normally, as is evident from their
evidence.
19. On 30.7.1991, the respondent was operated upon for transplant after he had ceased to be under
the treatment of the appellant. On 13.8.1991, the respondent was discharged from Prince Aly
Khan Hospital after his transplant. The respondent returned to Delhi on 14.8.1991, after
discharge.
20. On 7.7.1992, the respondent filed a complaint before the National Consumer Disputes Redressal
Commission, New Delhi (being Original Petition No.178 of 1992) claiming compensation of an
amount of Rs.12,00,000/- as his hearing had been affected. The appellant filed his reply stating,
inter alia, that there was no material brought on record by the respondent to show any corelationship
between the drugs prescribed and the state of his health. Rejoinder was filed by the
respondent.
21. The National Consumer Disputes Redressal Commission (hereinafter referred to as `the
Commission') passed an order on 6.10.1993 directing the nomination of an expert from the All
India Institute of Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an
opinion. This was done in order to get an unbiased and neutral opinion.
22. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the All India Institute of
Medical Sciences was submitted before the Commission, after examining the respondent. Dr.
Ghosh was of the opinion that the drug Amikacin was administered by the appellant as a life
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saving measure and was rightly used. It is submitted by the appellant that the said report further
makes it clear that there has been no negligence on the part of the appellant.
23. Evidence was thereupon led before the Commission. Two affidavits by way of evidence were
filed on behalf of the respondent, being that of his wife and himself. The witnesses for the
respondent were :-
i) The respondent Mohd. Ishfaq
ii) The wife of the respondent
iii) Dr. Ashok Sareen
iv) Dr. Vindu Amitabh
24. On behalf of the appellant, six affidavits by way of evidence were filed. These were of the
appellant himself, Dr. Danbar (a doctor attached to the Haemodialysis Department of Nanavati
Hospital), Dr. Abhijit Joshi (a Resident Senior Houseman of Nanavati Hospital), Mrs. Mukta
Kalekar (a Senior sister at Nanavati Hospital), Dr. Sonawala (the Urologist who referred the
respondent to the appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly Khan
Hospital). The witnesses for the appellant were:-
i) The appellant-Dr. M.F. D'Souza
ii) Dr. Danbar
iii) Dr. Upadhyay
iv) Mrs. Mukta Kalekar
v) Dr. Ashique Ali Rawal
25. The respondent also filed an opinion of the Chief of Nephrology at Fairview General Hospital,
Cleveland, Ohlo, which was heavily relied upon in the impugned judgment. The appellant has
alleged that the said opinion was written without examining the respondent and, in any case, the
appellant was not afforded an opportunity of cross-examining the person who gave the opinion.
26. The case of the respondent, in brief, is that the appellant was negligent in prescribing Amikacin
to the respondent of 500 mg twice a day for 14 days as such dosage was excessive and caused
hearing impairment. It is also the case of the respondent that the infection he was suffering from
was not of a nature as to warrant administration of Amikacin to him.
27. The appellant submitted before the Commission that at the time of admission of the respondent
on 29.5.1991 to the hospital, he had fever of 1040F and, after investigation, it was found that his
serum creatinine level was 13 mg%, blood urea 180 mg% and Haemoglobin 4.3 mg. Amikacin
was prescribed to him only after obtaining blood and urine culture reports on 3rd and 4th June,
1991, which showed the respondent resistant to other antibiotics. Even the witness of the
respondent (Dr. Sareen) conceded that he would have prescribed Amikacin in the facts of the
case. However, the Commission allowed the complaint of the respondent by way of the
impugned order dated 9.4.2002 and awarded Rs.4 lakh with interest @ 12% from 1.8.1992 as
well as Rs.3 lakh as compensation as well as Rs.5000/- as costs.
28. Before discussing the facts of the case, we would like to state the law regarding Medical
Negligence in India.
29. Cases, both civil and criminal as well as in Consumer Fora, are often filed against medical
practitioners and hospitals, complaining of medical negligence against doctors/hospitals/ nursing
homes and hence the latter naturally would like to know about their liability.
30. The general principles on this subject have been lucidly and elaborately explained in the three
Judge Bench decision of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC
1. However, difficulties arise in the application of those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it was observed : "The practitioner must bring
to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of
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care. Neither the very highest nor a very low degree of care and competence is what the law
requires."
32. Now what is reasonable and what is unreasonable is a matter on which even experts may
disagree. Also, they may disagree on what is a high level of care and what is a low level of care.
33. To give another example, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it has been
stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be
imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from
damages which may be imposed on him in a civil suit or by the Consumer Fora). However, what
is simple negligence and what is gross negligence may be a matter of dispute even among
experts.
34. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of
many cases. It depends on the particular facts and circumstances of the case, and also the
personal notions of the Judge concerned who is hearing the case. However, the broad and general
legal principles relating to medical negligence need to be understood.
35. Before dealing with these principles two things have to be kept in mind : (1) Judges are not
experts in medical science, rather they are lay men. This itself often makes it somewhat difficult
for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on
testimonies of other doctors which may not necessarily in all cases be objective, since like in all
professions and services, doctors too sometimes have a tendency to support their own colleagues
who are charged with medical negligence. The testimony may also be difficult to understand,
particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2)
A balance has to be struck in such cases. While doctors who cause death or agony due to medical
negligence should certainly be penalized, it must also be remembered that like all professionals
doctors too can make errors of judgment but if they are punished for this no doctor can practice
his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are
counter productive and serve society no good. They inhibit the free exercise of judgment by a
professional in a particular situation.
36. Keeping the above two notions in mind we may discuss the broad general principles relating to
medical negligence.General Principles Relating to Medical Negligence
37. As already stated above, the broad general principles of medical negligence have been laid down
in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab and Anr. (supra). However,
these principles can be indicated briefly here :
38. The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid
down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee
(1957) 1 WLR 582 as follows : "Where you get a situation which involves the use of some
special skill or competence, then the test as to whether there has been negligence or not is not the
test of the man on the top of a Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and professing to have that special
skill. A man need not possess the highest expert skill..... It is well-established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art." Bolam's test has been approved by the Supreme Court in Jacob Mathew's case.
39. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is
stated as follows:
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must
exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and
competence, judged in the light of the particular circumstances of each case, is what the law
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requires, and a person is not liable in negligence because someone else of greater skill and
knowledge would have prescribed different treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art, even though a body of adverse
opinion also existed among medical men. Deviation from normal practice is not necessarily
evidence of negligence. To establish liability on that basis it must be shown
1) that there is a usual and normal practice;
2) that the defendant has not adopted it; and
3) that the course in fact adopted is one no professional man of ordinary skill would have
taken had he been acting with ordinary care."
(emphasis supplied)
40. Eckersley vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test in the following words :
"From these general statements it follows that a professional man should command the corpus of
knowledge which forms part of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinary assiduous and intelligent members of his
profession in the knowledge of new advances, discoveries and developments in his field. He
should have such an awareness as an ordinarily competent would have of the deficiencies in his
knowledge and the limitations on his skill. He should be alert to the hazards and risks in any
professional task he undertakes to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional task he undertakes no less expertise,
skill and care than other ordinarily competent members of his profession would bring, but need
bring no more. The standard is that of the reasonable average. The law does not require of a
professional man that he be a paragon combining the qualities of a polymath and prophet."
41. A medical practitioner is not liable to be held negligent simply because things went wrong from
mischance or misadventure or through an error of judgment in choosing one reasonable course of
treatment in preference to another. He would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field. For instance, he would be liable
if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau
Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the
wrong part of the body, and he would be also criminally liable if he operates on someone for
removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free person. An error of
judgment may or may not be negligent. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers
that the decision of the accused professional was a wrong decision, provided there also exists a
body of professional opinion, equally competent, which supports the decision as reasonable in
the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 : "In the realm of
diagnosis and treatment there is ample scope for genuine difference of opinion and one man
clearly is not negligent merely because his conclusion differs from that of other professional
men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor
is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be
guilty of if acting with ordinary care...."
(emphasis supplied)
44. The standard of care has to be judged in the light of knowledge available at the time of the
incident and not at the date of the trial. Also, where the charge of negligence is of failure to use
some particular equipment, the charge would fail if the equipment was not generally available at
that point of time.
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45. The higher the acuteness in an emergency and the higher the complication, the more are the
chances of error of judgment. At times, the professional is confronted with making a choice
between the devil and the deep sea and has to choose the lesser evil. The doctor is often called
upon to adopt a procedure which involves higher element of risk, but which he honestly believes
as providing greater chances of success for the patient rather than a procedure involving lesser
risk but higher chances of failure. Which course is more appropriate to follow, would depend on
the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the
former procedure, even if it results in a failure. The usual practice prevalent nowadays is to
obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a
position to give consent before adopting a given procedure.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or
prescribes a treatment which has never been tried before to save the life of a patient when no
known method of treatment is available. If the patient dies or suffers some serious harm, should
the doctor be held liable? In our opinion he should not. Science advances by experimentation, but
experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were
joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa.
However, in such cases it is advisable for the doctor to explain the situation to the patient and
take his written consent.
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a
surgery has failed, the doctor cannot be held straightway liable for medical negligence by
applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit
an act or omission which would result in harm or injury to the patient since the professional
reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
48. As observed by the Supreme Court in Jacob Mathew's case : "A medical practitioner faced with
an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be
for the complainant to clearly make out a case of negligence before a medical practitioner is
charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal
action cannot perform a successful operation and a quivering physician cannot administer the
end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason - whether attributable to himself
or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential
surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion
being the better part of valour, a medical professional would feel better advised to leave a
terminal patient to his own fate in the case of emergency where the chance of success may be
10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject
and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be
a disservice to society."
49. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this.
Things have gone wrong and, therefore, somebody must be punished for it. However, it is well
known that even the best professionals, what to say of the average professional, sometimes have
failures. A lawyer cannot win every case in his professional career but surely he cannot be
penalized for losing a case provided he appeared in it and made his submissions.
50. To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence
has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus
for civil liability it may be enough for the complainant to prove that the doctor did not exercise
reasonable care in accordance with the principles mentioned above, but for convicting a doctor in
a criminal case, it must also be proved that this negligence was gross amounting to recklessness.
51. The difference between simple negligence and gross negligence has broadly been explained in
paragraphs 12 to 16 of Jacob Mathew's case, though difficulties may arise in the application of
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the principle in particular cases. For instance, if a mop is left behind in the stomach of a patient
while doing an operation, would it be simple negligence or gross negligence? If a scissors or
sharp edged medical instrument is left in the patient's body while doing the operation would that
make a difference from merely leaving a mop?
52. The professional is one who professes to have some special skill. A professional impliedly
assures the person dealing with him (i) that he has the skill which he professes to possess, (ii) that
skill shall be exercised with reasonable care and caution.
53. Judged by this standard, the professional may be held liable for negligence on the ground that he
was not possessed of the requisite skill which he professes to have. Thus a doctor who has a
qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic
treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC
332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on
10.10.2006, the National Consumer Commission held a homeopath liable for negligence for
prescribing allopathic medicines and administering glucose drip and giving injections. Protection
to Doctors in Criminal Cases
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected
from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the complainant has produced prima
facie evidence before the court in the form of a credible opinion given by another
competent doctor to support the charge of rashness or negligence on the part of the accused
doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and competent medical opinion,
preferably from a doctor in government service, qualified in that branch of medical practice
who can normally be expected to give an impartial opinion applying the Bolam test.
(iii) A doctor accused of negligence should not be arrested in a routine manner simply because
a charge has been leveled against him. Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigating officer feels satisfied
that the doctor proceeded against would not make himself available to face the prosecution
unless arrested, the arrest should be withheld. Precautions which Doctor/Hospitals/Nursing
Homes should take :
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility
should be observed strictly. Thus, in Sarwat Ali Khan vs. Prof. R. Gogi and others
Original Petition No.181 of 1997, decided on 18.7.2007 by the National Consumer
Commission, the facts were that out of 52 cataract operations performed between 26th
and 28th September, 1995 in an eye hospital 14 persons lost their vision in the operated
eye. An enquiry revealed that in the Operation Theatre two autoclaves were not
working properly. This equipment is absolutely necessary to carry out sterilization of
instruments, cotton, pads, linen, etc., and the damage occurred because of its absence
in working condition. The doctors were held liable.
(b) No prescription should ordinarily be given without actual examination. The tendency to
give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms,
but should also make his own analysis including tests and investigations where
necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get
a written consent from the patient.
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(e) An expert should be consulted in case of any doubt. Thus, in Smt. Indrani
Bhattacharjee, Original Petition No.233 of 1996 decided by the National Consumer
Commission on 9.8.2007, the patient was diagnosed as having `Mild Lateral Wall
Eschemia'. The doctor prescribed medicine for gastro-entiritis, but he expired. It was
held that the doctor was negligent as he should have advised consulting a Cardiologist
in writing.
(f) Full record of the diagnosis, treatment, etc. should be maintained. Application of the
above mentioned general principles to particular cases :

Decisions of the Court
55. In Pt. Parmanand Katara vs. Union of India & Others AIR 1989 SC 2039, the petitioner referred
to a report published in the newspaper "The Hindustan Times" in which it was mentioned that a
scooterist was knocked down by a speeding car. Seeing the profusely bleeding scooterist, a
person who was on the road, picked up the injured and took him to the nearest hospital. The
doctors refused to attend and told the man that he should take the patient to another hospital
located 20 kilometers away authorized to handle medico-legal cases. The injured was then taken
to that hospital but by the time he could reach, the victim succumbed to his injuries.
56. The Supreme Court referred to the Code of Medical Ethics drawn up with the approval of the
Central Government under Section 33 of the Indian Council Medical Act and observed "Every
doctor whether at a Government Hospital or otherwise has the professional obligation to extend
his services for protecting life. The obligation being total, absolute and paramount, laws of
procedure whether in statutes or otherwise cannot be sustained and, therefore, must give way."
57. The Supreme Court held that it is the duty of the doctor in an emergency to begin treatment of
the patient and he should not await the arrival of the police or to complete the legal formalities.
The life of a person is far more important than legal formalities. This view is in accordance with
the Hippocratic Oath of doctors.
58. Although this decision has laid down that it is the duty of a doctor to attend to a patient who is
brought to him in an emergency, it does not state what penalty will be imposed on a doctor who
refuses to attend the said patient. Consequently it will depend on the fact and circumstances of
the case. However, this case is important because nowadays health care has often become a
business, as is mentioned in George Bernard Shaw's play "The Doctor's Dilemma". The medical
profession is a noble profession and it should not be brought down to the level of a simple
business or commerce. The truth of the matter, sadly, is that today in India many doctors (though
not all) have become totally money-minded, and have forgotten their Hippocratic oath. Since
most people in India are poor the consequence is that for them proper medical treatment is next
to impossible, and hence they have to rely on quacks. This is a disgrace to a noble profession.
59. In Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and Another AIR
1996 SC 2426, the Supreme Court held that the denial of emergency aid to the petitioner due to
the non availability of bed in the Government Hospital amounts to the violation of the right to
life under Article 21 of the Constitution. The Court went on to say that the Constitutional
obligation imposed on the State by Article 21 cannot be abdicated on the ground of financial
constraint.
60. In Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430 the respondent
suffered a fracture of his hand. He went to the appellant who held himself out to be a qualified
medical practitioner. The appellant bandaged the respondent's hand and prescribed certain
medicines. He was ultimately taken to another doctor but by this time the damage to his hand was
permanent. It was found that the appellant was not a qualified doctor to give treatment to the
respondent. The Supreme Court had directed him to pay Rs.80,000 as compensation to the
respondent.
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61. In Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the appellant was having a degree of
Bachelor of Medicine in Electrohomoeopathy from the Board of Electrohomoeopathy Systems of
Medicines, Jabalpur (M.P.). He did not possess any recognized medical qualification as defined
in the Indian Medical Council Act, 1956. Yet he performed an operation to terminate the three
month pregnancy in a woman, who died in the clinic due to shock due to non application of
anesthesia. The Supreme Court confirmed his sentence but reduced it to one and a half years
rigorous imprisonment under Section 314/34 IPC and a fine of Rs.25000 payable to the mother of
the deceased.
62. In State of Haryana and others vs. Raj Rani (2005) 7 SCC 22 it was held that if a child is born to
a woman even after she had undergone a sterilization operation by a surgeon, the doctor was not
liable because there cannot be a 100% certainty that no child will be born after a sterilization
operation. The Court followed the earlier view of another three Judge Bench in State of Punjab
vs. Shiv Ram & others (2005) 7 SCC 1. These decisions will be deemed to have overruled the
two Judge Bench decision in State of Haryana and Others vs. Smt. Santra AIR 2000 SC 1888 in
which it was held that if a child is born after the sterilization operation the surgeon will be liable
for negligence.
63. In P.N. Rao vs. G. Jayaprakasu AIR 1990 AP 207, the plaintiff was a brilliant young boy who
had passed the pre-University course securing 100% marks in Mathematics and 93.5% in
physical sciences. He was also getting a monthly scholarship. He was offered a seat in B.E.
Degree course in four Engineering Colleges. He had a minor ailment - chronic nasal discharge -
for which his mother took him to a doctor for consultation who diagnosed the disease as Nasal
Allergy and suggested operation for removal of tonsils. He was admitted in the Government
General Hospital, Guntur and the operation was performed. He did not regain consciousness even
after three days and thereafter for another 15 days he was not able to speak coherently. When he
was discharged from hospital, he could only utter a few words and could not read or write and
lost all his knowledge and learning. His father took him to Vellore where he was examined by a
Professor of Neuro Surgery and it was found that his brain had suffered due to cerebral anoxia,
which was a result of improper induction of anaesthetics and failure to take immediate steps to
reduce anaesthesia. The court after examining the witnesses including the Professor of
Anaesthesiology held that defendants were clearly negligent in discharging their duties and the
State Government was vicariously liable.
64. In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another AIR 1969 SC 128, a
patient had suffered from fracture of the femur. The accused doctor while putting the leg in
plaster used manual traction and used excessive force for this purpose, with the help of three
men, although such traction is never done under morphia alone but done under proper general
anaesthesia. This gave a tremendous shock causing the death of the boy. On these facts the
Supreme Court held that the doctor was liable to pay damages to the parents of the boy.
65. In Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR 2004 SC 4091, the
appellant was a doctor accused under Section 304A IPC for causing death of his patient. The
operation performed by him was for removing his nasal deformity. The Magistrate who charged
the appellant stated in his judgment that the appellant while conducting the operation for removal
of the nasal deformity gave incision in a wrong part and due to that blood seeped into the
respiratory passage and because of that the patient collapsed and died. The High Court upheld the
order of the Magistrate observing that adequate care was not taken to prevent seepage of blood
resulting in asphyxia. The Supreme Court held that from the medical opinions adduced by the
prosecution the cause of death was stated to be `not introducing a cuffed endotracheal tube of
proper size as to prevent aspiration of blood from the wound in the respiratory passage.' The
Supreme Court held that this act attributed to the doctor, even if accepted to be true, can be
described as a negligent act as there was a lack of care and precaution. For this act of negligence
he was held liable in a civil case but it cannot be described to be so reckless or grossly negligent
as to make him liable in a criminal case. For conviction in a criminal case the negligence and
10
rashness should be of such a high degree which can be described as totally apathetic towards the
patient.
66. In Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. the National Consumer
Commission held that Dr. Louie showed herself as an M.D. although she was only M.D.
Freiburg, a German Degree which is equivalent to an M.B.B.S. degree in India. She was guilty of
negligence in treating a woman and her baby which died. There was vacuum slip, and the baby
was delivered in an asphyxiated condition.
67. In Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a patient died a day after surgery and
the relatives found a pair of scissors utilized by the surgeon while collecting the last remains. The
doctor was held liable and a compensation of Rs.1.20 lakhs was awarded by the State Consumer
Forum, Chandigarh.
68. In Spring Medows Hospital & Another vs. Harjol Ahluwalia thr' K.S. Ahluwalia & Another
(1998) CPJ 1, a minor child was admitted by his parents to a nursing home as he was suffering
fever. The patient was admitted and the doctor diagnosed typhoid and gave medicines for typhoid
fever. A nurse asked the father of the patient to get an injection Lariago which was administered
by the nurse to the patient who immediately collapsed. The doctor was examined and testified
that the child suffered a cardiac arrest on account of the medicine having being injected which
led to brain damage. The National Commission held that the cause of cardiac arrest was
intravenous injection of Lariago of such a high dose. The doctor was negligent in performing his
duty because instead of administering the injection himself he permitted the nurse to give the
injection. There was clear dereliction of duty on the part of the nurse who was not even a
qualified nurse and was not registered with any nursing council of any State. Both the doctor and
nurse and the hospital were found liable and Rs.12.5 lakhs was awarded as compensation to the
parents.
69. In Consumer Protection Council and Others vs. Dr. M. Sundaram and Another (1998) CPJ 3, the
facts were that one Mrs. Rajalaxmi was admitted to a nursing home which diagnosed the ailment
as Hodgkin's Lymphoma. She was administered Endoxan injection five doses in five days. She
was referred to another doctor who was an ENT specialist, who after examination opined that no
lymph glands were seen. A sample of her bone marrow was sent to an Oncologist who opined
that the picture does not fit with Hodgkin's disease but the patient had megaloblastic anemia in
the bone marrow. Subsequently she was discharged from the nursing home and was advised to
visit CMC Vellore for treatment. The patient consulted another doctor who diagnosed the same
as renal failure. The complainant alleged that the first doctor failed and neglected to refer the
matter to a Cancer Specialist but wrongly diagnosed the ailment of the patient as Hodgkin's
Lymphoma and had unnecessarily administered injection of Endoxan and because of the toxicity
of that drug the kidney cells of the patient got destroyed resulting in renal failure for which she
had to undergo kidney transplantation which led to her death. The National Commission,
upholding the State Commission decision, held that there was no negligence on the part of the
doctor who had consulted a pathologist, and in the light of discussion with him and on inspection
of some more slides of bone marrow specimens which also revealed the same finding, namely,
existence of deposits of Hodgkin's Lymphoma, proceeded to administer the patient injections of
Endoxan. It was held on the basis of medical opinion that any prudent consultant physician
would not delay the commencement of chemotherapy where repeated examination of the bone
marrow slides had yielded the report that the Hodgkin's deposits were present. Endoxan is a drug
of choice in the treatment of Hodgkin's Lymphoma and there was no negligence on the part of
the doctor.
70. In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and Another (1998) CPJ 110, the
complainant's wife suffered from Sinusitis and was advised surgery by the doctor. She had
suffered a massive heart attack while in the operation theatre. The State Commission found that
necessary precautions and effective measures were taken to save the deceased and dismissed the
11
complaint. The State Commission relied on the affidavits of four doctors who opined that there
was no negligence. The complainant had not given any expert evidence to support his allegation
and in these circumstances it was held that no case was made out against the doctor.
71. In A. S. Mittal & Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989 (3) SCC 223 a free eye
camp was organized for ophthalmic surgical treatment to patients. However, the eyes of several
patients after operation were irreversibly damaged, owing to post-operative infection of the intra
ocular cavities of the eyes, caused by normal saline used at the time of surgery. The Supreme
Court directed the State Government to pay Rs.12,500/- as compensation to each victim as there
was a clear negligence.
72. In Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it has been held
that the following acts are clearly due to negligence :
(i) Removal of the wrong limb;
(ii) Performance of an operation on the wrong patient;
(iii) Giving injection of a drug to which the patient is allergic without looking into the outpatient
card containing the warning;
(iv) Use of wrong gas during the course of an anaesthetic, etc.
73. From the aforementioned principles and decisions relating to medical negligence, with which we
agree, it is evident that doctors and nursing homes/hospitals need not be unduly worried about the
performance of their functions. The law is a watchdog, and not a bloodhound, and as long as
doctors do their duty with reasonable care they will not be held liable even if their treatment was
unsuccessful.
74. However, every doctor should, for his own interest, carefully read the Code of Medical Ethics
which is part of the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002 issued by the Medical Council of India under Section 20A read with Section
3(m) of the Indian Medical Council Act. 1956.
75. Having mentioned the principles and some decisions relating to medical negligence (with which
we respectfully agree), we may now consider whether the impugned judgment of the
Commission is sustainable. In our opinion the judgment of the Commission cannot be sustained
and deserves to be set aside.
76. The basic principle relating to the law of medical negligence is the Bolam Rule which has been
quoted above. The test in fixing negligence is the standard of the ordinary skilled doctor
exercising and professing to have that special skill, but a doctor need not possess the highest
expert skill. Considering the facts of the case we cannot hold that the appellant was guilty of
medical negligence.
77. The facts of the case reveal that the respondent was suffering from chronic renal failure and was
undergoing haemodialysis twice a week on that account. He was suffering from high fever which
remained between 1010-1040F. He refused to get admitted to hospital despite the advice of the
appellant. The appellant prescribed antibiotics for him. The respondent was also suffering from
severe urinary tract infection which could only be treated by Amikacin or Methenamine
Mandelate. Since Methenamine Mandelate cannot be used in patients suffering from renal
failure, Amikacin injection was administered to him.
78. A perusal of the complaint filed by the respondent before the National Commission shows that
his main allegation is that he suffered hearing impairment due to the negligence of the appellant
herein who allegedly prescribed overdose of Amikacin injections without caring about the critical
condition of the respondent which did not warrant that much dose. The complainant (respondent
herein) has alleged that due to this medical negligence the complainant has suffered mental
torture and frustration and other signs of helplessness and is feeling totally handicapped, and his
12
efficiency in office has got adversely affected. It may be mentioned that the respondent is
working as Export Promotion Officer in the Ministry of Commerce, Udyog Bhawan, New Delhi.
79. The case of the appellant, however, is that the complainant was referred to the appellant by Dr. F.
P. Soonawalla, the renowned Urologist of Bombay. The complainant had consulted Dr. F. P.
Soonawalla who had referred the complainant to the appellant for routine Haemodialysis and pretransplant
treatment. In our opinion, the very fact that Dr. Soonawalla referred the complainant to the appellant is an indication that the appellant has a good reputation in his field, because Dr.
Soonawalla is an eminent doctor of India of international repute, and he would not have
ordinarily referred a patient to an incompetent doctor. This is one factor which goes in favour of
the appellant, though of course it is not conclusive.
80. It appears that after the complainant was referred to the appellant by Dr. Soonawalla he met the
appellant for the first time on 24.4.1991 as an outdoor patient in the Haemodialysis Unit attached
to Bulabhai Nanavati Hospital, Bombay. After examining the complainant, the appellant found
that the complainant was a patient of Chronic Renal Failure due to Bilateral Poly Cystic Kidneys.
Hence the appellant suggested to the complainant to have Haemodialysis twice a week as an
outdoor patient. The complainant was also investigated to find a suitable kidney donor.
81. The appellant has alleged in his written statement filed before the National Commission that the
complainant was in a hurry to have a quick kidney transplant by Dr. Soonawalla and he was very
obstinate, stubborn and short- tempered. Dr. Soonawalla was out of India from 1.6.1991 to
1.7.1991. On 20.5.1991, the complainant approached the appellant with high fever of 101-
103OF, and the appellant suggested immediate admission of the complainant in the hospital for
detailed investigation and treatment but the complainant refused to get himself admitted and
refused to comply with the advice. Hence the appellant was obliged to put the complainant on a
Broad Spectrum Antibiotic Ampoxim 500 mg four times a day and Tab. Crocin - SOS fever.
82. From 21.5.1991, the complainant attended the Haemodialysis unit of the hospital on three
occasions and informed the appellant that the fever had not yet remitted. The appellant again
advised the complainant to get admitted in hospital, but he refused the advice on account of his
obstinacy.
83. On 29.5.1991, the complainant was in a serious condition having high fever of 104OF. After
much persuasion he finally agreed to be admitted for final investigation and got admitted in the
hospital on 29.5.1991.
84. The complainant was investigated on 30.5.1991 and his report showed High Creatinine - 13 mg.,
Blood Urea - 180 mg and Haemoglobin 4.3% which was 5 days prior to the commencement of
the injection Amikacin and not after the said injection.
85. In our opinion it is clear that the respondent already had high Blood Creatinine, Blood Urea and
low Haemoglobin before the injection of Amikacin. He had also high fever which was on
account of serious blood and urinary tract infection. The appellant was of the view that the
respondent's infection could only be treated by injection of Amikacin, as Methenamine
Mandelate could not be used due to his chronic renal failure. The respondent's report also
established his resistance to all other antibiotics. Gastroscopy was done on 4.6.1991 and
Amikacin was administered after test dosage only from 5.6.1991. Amikacin was administered on
5th, 6th and 7th June, 1991 and at this stage he did not complain of any side effects and his
temperature subsided rapidly. On 5.6.1991, he was administered Cap. Augmentin 375 mg three
times a day for his serious Blood Infection and he was also transferred one Unit of Blood during
dialysis and his temperature subsided rapidly and he felt much better.
86. The appellant advised the respondent in view of his blood infection that he should not get
transplanted for six weeks, but the complainant/respondent insisted on getting the transplant
although he was not medically in fit condition. Hence the appellant advised the respondent to
further stay in the hospital for some time, but the respondent did not agree and he started
13
shouting at the top of his voice and insisted to be discharged from the hospital on his own on
8.6.1991 at 9 a.m..
87. In view of his insistence the respondent was discharged from the hospital on his own on 8.6.1991
at 9 a.m.. The appellant suggested alternate day Haemodialysis but the respondent refused saying
that he was staying too far away and could not come three times a week for Haemodialysis. In
this situation, the appellant was left with no choice but to suggest Injection Amikacin (500 mg)
twice a day in view of the respondent's infection and delicate condition and his refusal to visit the
Haemodialysis facility on alternate dates. The appellant also suggested the following drugs under
the supervision of the doctor when he would visit the dialysis unit:
"1. Injection Amikacin 500 mg twice a day x 10 days for urinary tract infection.
2. Cap. Augmentine 375 mg 3 times a day for 6 weeks for blood infection
3. Cap. Becosule tab daily
4. Tab. Folvite 1 tab. Daily
5. Syrup Alludux
6. Injection Engrex once a month for 2 months
7. Cap. Bantes 100 mg twice a day"
88. It appears that the respondent attended the Haemodyalsis unit where he met the appellant on
11th, 14th, 18th and 20th June, 1991. Thereafter the respondent did not come to the hospital.
89. On 11.6.1991 the respondent complained to the appellant of slight tinnitus or ringing in the ear.
The appellant immediately reviewed the treatment on the discharge card in possession of the
respondent and asked the said respondent and also asked his attendant i.e. his wife to stop
Injection Amikacin and Cap. Augmantine verbally, and also marked `X' on the discharge card in
his own hand writing on 11.6.1991 i.e. 3 days after discharge. Hence, as per direction of the
appellant the respondent should have stopped receiving Injection Amikacin after 10.6.1991, but
on his own he kept on taking Amikacin Injections. The Discharge Card as per the respondent's
complaint clearly shows that the said injection had been `X' crossed, and he was directed not to
take the said injection from 11.6.1991 i.e. on his very first complaint when he made mention of
ringing in the ears or tinnitus.
90. On perusal of the Xerox copies of the papers of the Cash Memo supplied by the respondent as
per annexure `4' it is in our opinion evident that the respondent continued to take the medicine
against the advice of the appellant, and had unilaterally been getting injected as late as 17.6.1991,
i.e. 7 days after he had been instructed verbally and in writing in the presence of his attendant i.e.
his wife and staff members of the said hospital to stop Injection Amikacin/Cap. Augmantine
because of tinnitus as early as on 11.6.1991.
91. On 19.6.1991 a relative of the respondent who identified himself on the phone as one Mr. Khan
from Byculla rang up and stated that the said respondent was once again running high fever. The
appellant once again immediately advised him urgent admission to the said hospital which the
respondent refused to comply and said that he would go elsewhere.
92. From the above facts it is evident that the appellant was not to blame in any way and it was the
non-cooperative attitude of the respondent, and his continuing with the Amikacin injection even
after 11.6.1991 which was the cause of his ailment, i.e. the impairment of his hearing. A patient
who does not listen to his doctor's advice often has to face the adverse consequences.
93. It is evident from the fact that the respondent was already seriously ill before he met the
appellant. There is nothing to show from the evidence that the appellant was in any way
negligent, rather it appears that the appellant did his best to give good treatment to the respondent
to save his life but the respondent himself did not cooperate.
94. Several doctors have been examined by the National Commission and we have read their
evidence which is on record. Apart from that, there is also the opinion of Prof. P. Ghosh of All
14
India Institute of Medical Sciences who had been nominated by AIIMS as requested by the
Commission, which is also on record. It has been stated by Dr. Ghosh that many factors in the
case of renal diseases may cause hearing loss. Prof. Ghosh has stated that it is impossible to
foretell about the sensitivity of a patient to a drug, thereby making it difficult to assess the
contributions towards toxicity by the other factors involved. Hearing loss in renal patients is a
complex problem which is a result of many adverse and unrelated factors. Generally, the state of
hearing of a renal patient at any time is more likely to be the result of a multifactorial effect than
the response to a single agent.
95. Prof Ghosh has no doubt mentioned that concomitant use of Aminoglycoside antibiotics (e.g.
Amikacin) and loop diuretic may lead to summation and potentiation of ototoxic effect, and the
patient has a higher risk factor of hearing impairment if there is a higher dose of Amikacin.
However, he has stated that such gross impairment of the balancing function has perhaps been
wrought by a combination of factors.
96. Prof Ghosh has also opined that the Amikacin dose of 500 mg twice a day for 14 days prescribed
by the doctor was a life saving measure and the appellant did not have any option but to take this
step. Life is more important than saving the function of the ear. Prof Ghosh was of the view that
antibiotics was rightly given on the report of the sensitivity test which showed that the organisms
were sensitive to Amikacin. Hence the antibiotic, was not blindly used on a speculation or as a
clinical experiment.
97. Prof Ghosh mentioned that in the literature on Amikacin it has been mentioned that in a life
threatening infection adult dosage may be increased to 500 mg every eight hours but should not
be administered for longer than 10 days.
98. In view of the opinion of Prof Ghosh, who is an expert of the All India Institute of Medical
Sciences, we are clearly of the view that the appellant was not guilty of medical negligence and
rather wanted to save the life of the respondent. The appellant was faced with a situation where
not only was there kidney failure of the patient, but also urinary tract infection and blood
infection. In this grave situation threatening the life of the patient the appellant had to take drastic
steps. Even if he prescribed Amikacin for a longer period than is normally done, he obviously did
it to save the life of the respondent.
99. We have also seen the evidence of other doctors as well as the affidavits filed before the National
Commission. No doubt some of the doctors who have deposed in this case have given different
opinions, but in cases relating to allegations of medical negligence this Court has to exercise
great caution.
100. Dr. Ashok Sareen who is MD in medicine and trained in Nephrology has in his evidence stated
that for Kidney failure patients one has to be very careful with the drug Amikacin. He stated that
he uses the drug only when other antibiotics have failed or cannot be used. It should be used with
wide intervals and only when absolutely necessary and when no other drug is available. When
asked whether Amikacin should be given to a patient with 10 days stretch, as was prescribed by
the appellant in this case, Dr. Sareen replied that it was difficult to give an answer to that
question because it depends entirely on the treating physician. Dr. Sareen has admitted that
giving Amikacin injection twice a day for 14 days can cause nerve deafness which means losing
one's hearing. No doubt, Dr. Sareen in his cross- examination stated that he would have
prescribed the dose given to the respondent differently but he has not stated what would be the
dose he would have prescribed.
101. We have also perused the evidence of Dr. Vindu Amitabh, who is a MD in medicine in
Safdarjung hospital and looking after Nephrology also. He has stated that normally Amikacin is
given for 5 to 7 days twice daily. However, he has also stated that in severe circumstances it can
be given for a longer period but if the patient is developing complications then the doses should
15
be stopped immediately. If there is no substitute for it then Amikacin should be given in a very
guarded dose. He has admitted that Amikacin can lead to deafness.
102. In the affidavit of Dr. Raval of the Bombay Indian Inhabitant, who has been practicing in
Urology for several years it is stated that the respondent had undergone a kidney transplant
operation under Dr. Raval's supervision on 30th July 1991 at the Prince Alikhan Hospital,
Bombay and he was discharged on 13th August, 1991. Dr. Raval has stated in his affidavit that
during the time the respondent was under his care he had a free conversation in English and Urdu
without the aid of interpreter and he did not complain of suffering any hearing problem until he
was discharged in the middle of August 1991. An affidavit to the same effect has been given by
Dr. Kirti L. Upadhyaya, of Bombay Indian Inhabitant, who is also a Nephrologist. He stated that
the respondent did not complain of any hearing problem to him also.
103. An affidavit has also been filed by Dr. Sharad M. Sheth, of Bombay Indian Inhabitant who is also
MD qualified in Nephrology. He also stated in paragraph 3 of his affidavit as follows:-
"I state that in the circumstances of the case when Klebsiella Organism was found resistant to all
powerful drugs inclusive of Augmentin with the exception of Amikacin any nephrologist of a
reasonable standard of proficiency would have prescribed "Amikacin" drug in measured doses as
a life saving drug despite the well established fact that this drug might cause `tinnitus' or partial
hearing impairment which is reversible, to almost complete extent in most of the cases after
discontinuation of the drug as soon as any of the above symptoms makes its appearance. I state
that in this situation, `Amikacin' could not have been avoided if the danger to the life of the
patient had to be thwarted. The diagnosis of Dr. M.F. D'Souza and the line of treatment adopted
and administered to the said Shri Mohd. Ishaq, who was suffering from a renal failure in addition
to the above specific infections appears to be correct."
104. The appellant has also filed his own affidavit before the National Consumer Commission which
we have perused. We have also seen the affidavit of Dr. Ashok L. Kirpalani of Lady Ratan Tata
Medical Centre, Bombay, who is MD in Nephrology. He stated that the medicine prescribed by
the appellant was absolutely right in the circumstances in view of the fact, that the patient was
suffering serious life threatening infection.
105. We may also refer to the affidavit of Mrs. Mukta Kolekar of Bombay Indian Inhabitant, who is a
Senior Sister attached to the hospital. She has stated in her affidavit as follows :-
"I know Dr. Martin F.D'Souza who is a Nephrologist and who is attached to the said hospital
since 1984. I say that I know Mr. Mohd. Ishaq. I distinctly remember him, as very few patients
are as ill-tempered arrogant and obstinate like him. The said Mohd. Ishaq came to the said
hospital as an outdoor as well as indoor patient for Haemodialysis on a number of occasions
commencing from the month of April, 14th 1991 till 20th June, 1991 till 8th June, 1991 until suo
moto he left the hospital. I say that on 11th June,1991 the said Mohd. Ishaq came to the hospital
for the purpose of Haemodialysis. He had come of his own and he had no problem either in
walking or in hearing. Nothing abnormal was found in him. However, during Haemodialysis, he
complained to the Doctor of ringing in the ears and thereupon Dr. Martin F.D'Souza called for
the Discharge Card of the said Mohd. Ishaq and verified the medicine and injections which were
prescribed and on verification, Dr. Martin F.D'Souza immediately deleted injection Amikacine
and Cap. Augmentin and put a cross against the prescription of the said injection, and
immediately gave instructions to me as well as to the other staff members not to give that
injection at all, and also told the said Mohd. Ishaq and his wife who had accompanied him, not to
take or get administered the said injection. I say that after 11th June, 1991, the said Mohd. Ishaq
came to the hospital as an outdoor patient on 14th June, 17th June and 20th June, 1991 and did
not make any complaint of any nature whatsoever with regard to his hearing faculties. On the
contrary, he used to have conversation and used to respond to the same as an ordinary man. The
said Mohd. Ishaq used to come to hospital on his own without the assistance or help of anybody
and after the dialysis also he used to go on his own. Thus, until 20th June, 1991, the said Mohd.
16
Ishaq had no problems either in hearing or in movement of the limbs or parts of his body or in
lifting parts of his body or in walking."
106. From these deposition and affidavits it cannot be said that the appellant was negligent. In fact
most of the doctors who have deposed or given their affidavits before the Commission have
stated that the appellant was not negligent.
107. In his written statement filed before the National Commission the appellant has stated in
paragraph 9 (q-r) as follows :
"(q) On the 11th June,1991 the Complainant complained to Opposite Party of slight tinnitus or
ringing in the ear. Opposite Party immediately reviewed the treatment on the discharge
card in possession of the Complainant and asked the said Complainant and also made his
attendant i.e. his wife to understand and asked her also to stop Injection Amikacin and Cap.
Augmentin verbally as well as marked `X' on the discharge card in his own hand writing
i.e. on 11th June, 1991 i.e. 3 days after discharge. Therefore, as per direction Opposite
Party Complainant could have taken or received Injection Amikacin only upto 10th June,
1991 when he showed the very first and Preliminary side effect of Injection Amikacin.
Discharge Card as per the Complainant's Complaint Annexure `3'speaks clearly that the
said Injection has been `X' crossed and he was directed not to take the said Injection from
11th June, 1991 i.e. on his very first complaint he made of ringing in the ears, or tinnitus.
(r) On perusal of the Xerox copies of the papers of the Cash Memo supplied by the
Complainant as per Annexure `4' it is evident that the Complainant against the advice of
the Opposite Party and in breach of assurances, high handedly and unilaterally had been
getting injected as late as 17th June, 1991 i.e. 7 days after he had been instructed verbally
and in writing in the presence of his attendant i.e. his wife and staff members of the said
hospital to stop Injection Amikacin/Cap. Augmentin because of tinnitus as early as 11th
June, 1991"
108. We see no reason to disbelieve the above allegations of the appellant that on 11.6.1991 he had
asked the respondent to stop taking Amikacin injections, and in fact this version is corroborated
by the testimony of the Senior Sister Mukta Kolekar in her affidavit, relevant part of which has
been quoted above. Hence, it was the respondent himself who is to blame for having continued
Amikacin after 11.6.1991against the advice of the appellant.
109. Moreover, in the statement of Dr. Ghosh before the National Consumer Dispute Redressal
Commission it has been stated that it is by no means established that Amikacin alone can cause
deafness. Dr. Ghosh stated that there are 8 factors that can cause loss of hearing. Moreover, there
are conflicting versions about the deafness of the respondent. While the respondent stated that he
became deaf in June 1991, most of the Doctors who filed affidavits before the Commission have
stated that they freely conversed with him in several meetings much after 21st June and in fact up
to the middle of August 1991.
110. The National Commission had sought the assistance of AIIMS to give a report about the
allegations of medical negligence against the appellant. AIIMS had appointed Dr. Ghosh to
investigate the case and submit a report and Dr. Ghosh submitted a report in favour of appellant.
Surprisingly, the Commission has not placed much reliance on the report of Dr. Ghosh, although
he is an outstanding ENT specialist of international repute.
111. We have carefully perused the judgment of the National Commission and we regret that we are
unable to concur with the views expressed therein. The Commission, which consists of laymen in
the field of medicine, has sought to substitute its own views over that of medical experts, and has
practically acted as super-specialists in medicine. Moreover, it has practically brushed aside the
evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well as the affidavits
of several other doctors (referred to above) who have stated that the appellant acted correctly in
the situation he was faced. 112. The Commission should have realized that different doctors have
17
different approaches, for instance, some have more radical while some have more conservative
approaches. All doctors cannot be fitted into a straight-jacketed formula, and cannot be penalized
for departing from that formula.
113. While this Court has no sympathy for doctors who are negligent, it must also be said that
frivolous complaints against doctors have increased by leaps and bounds in our country
particularly after the medical profession was placed within the purview of the Consumer
Protection Act. To give an example, earlier when a patient who had a symptom of having a heart
attack would come to a doctor, the doctor would immediately inject him with Morphia or
Pethidine injection before sending him to the Cardiac Care Unit (CCU) because in cases of heart
attack time is the essence of the matter. However, in some cases the patient died before he
reached the hospital. After the medical profession was brought under the Consumer Protection
Act vide Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651 doctors who administer
the Morphia or Pethidine injection are often blamed and cases of medical negligence are filed
against them. The result is that many doctors have stopped giving (even as family physicians)
Morphia or Pethidine injection even in emergencies despite the fact that from the symptoms the
doctor honestly thought that the patient was having a heart attack. This was out of fear that if the
patient died the doctor would have to face legal proceedings.
114. Similarly in cases of head injuries (which are very common in road side accidents in Delhi and
other cities) earlier the doctor who was first approached would started giving first aid and apply
stitches to stop the bleeding. However, now what is often seen is that doctors out of fear of facing
legal proceedings do not give first aid to the patient, and instead tell him to proceed to the hospital by which time the patient may develop other complications.
115. Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related
to medical negligence, and not take a view which would be in fact a disservice to the public. The
decision of this Court in Indian Medical Association vs. V.P. Shantha (Supra) should not be
understood to mean that doctors should be harassed merely because their treatment was
unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the
aforesaid decision it has been observed (vide para 22) :-
"In the matter of professional liability professions differ from other occupations for the reason
that professions operate in spheres where success cannot be achieved in every case and very
often success or failure depends upon factors beyond the professional man's control."
...............
116. It may be mentioned that the All India Institute of Sciences has been doing outstanding research
in Stem Cell Therapy for the last eight years or so for treating patients suffering from paralysis,
terminal cardiac condition, parkinsonism, etc, though not yet with very notable success. This
does not mean that the work of Stem Cell Therapy should stop, otherwise science cannot
progress.
117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the
Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing
notice to the doctor or hospital against whom the complaint was made the Consumer Forum or
Criminal Court should first refer the matter to a competent doctor or committee of doctors,
specialized in the field relating to which the medical negligence is attributed, and only after that
doctor or committee reports that there is a prima facie case of medical negligence should notice
be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors
who may not be ultimately found to be negligent. We further warn the police officials not to
arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob
Mathew's case (supra), otherwise the policemen will themselves have to face legal action.
118. In the present case the appellant was faced with an extremely serious situation. Had the appellant
been only suffering from renal failure it is possible that a view could be taken that the dose
18
prescribed for the appellant was excessive. However, the respondent was not only suffering from
renal failure but he was also suffering from urinary tract infection and also blood infection i.e
Septicaemia which is blood poisoning caused by bacteria or a toxin. He had also extremely high
urea. In this extremely serious situation, the appellant had naturally to take a drastic measure to
attempt to save the life of the respondent. The situation was aggravated by the non-cooperation of
the respondent who seems to be of an assertive nature as deposed by the witnesses. Extraordinary
situations require extraordinary remedies. Even assuming that such a high dose of Amikacin
would ordinarily lead to hearing impairment, the appellant was faced with a situation between the
devil and the deep sea. If he chose to save the life of the patient rather than his hearing surely he
cannot faulted.
119. In the present case the blood urea of the respondent was found to be 180 mgs.% whereas
normally it should not exceed 10-50 mgs.%. This shows that very serious infection in the kidney
of the respondent was taking place which required drastic measures.
120. The allegation against the appellant is that he gave overdose of the antibiotic. In this connection
it may be mentioned that antibiotics are usually given for a minimum of five days, but there is no
upper limit to the number of days for which they should continue, and it all depends on the
condition of the patient. Giving lesser dose of antibiotic may create other complications because
it can cause resistance in the bacteria to the drug, and then it will be more difficult to treat.
121. As regards the impairment of hearing of the respondent it may be mentioned that there is no
known antibiotic drug which has no side effect. Hence merely because there was impairment in
the hearing of the respondent that does not mean that the appellant was negligent. The appellant
was desperately trying to save the life of the respondent, which he succeeded in doing. Life is
surely more important than side effects.
122. For example many Anti Tubercular drugs (e.g. Streptomycin) can cause impairment of hearing.
Does this mean that TB patients should be allowed to die and not be given the Anti Tubercular
drug because it impairs the hearing? Surely the answer will be in the negative.
123. The courts and Consumer Fora are not experts in medical science, and must not substitute their
own views over that of specialists. It is true that the medical profession has to an extent become
commercialized and there are many doctors who depart from their Hippocratic Oath for their
selfish ends of making money. However, the entire medical fraternity cannot be blamed or
branded as lacking in integrity or competence just because of some bad apples.
124. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails.
For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean
that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is
some strong evidence to suggest that he is.
125. On the facts of this particular case, we are of the opinion that the appellant was not guilty of
medical negligence. Resultantly, the appeal is allowed; the impugned judgment and order of the
National Commission is set aside. No costs.
......................J.
[Markandey Katju]
.....................J.
[R.M. Lodha]
New Delhi; February 17, 2009

ANTI QUACKERY

JUDGEMENTS AND DOCUMENTS (click here)PREFACE
The purpose of this compendium of court orders and various rules and regulations is to acquaint doctors regarding specific provisions and orders barring quackery by unqualified people, practitioners of Indian & Integrated Medicine to practice Modern Medicine. This ready reckoner of provision of Acts and rules and court orders will allow you to decipher whether one is a quack and what actions are required to be taken against him.
We read/view in print and electronic media about many cases of patients who have suffered major health setback or even died due to receiving allopathic treatment from unqualified quacks. This is the tip of the iceberg as most cases of malpractice go unreported. It has been reported that number of quacks are increasing in India, both in urban and rural areas. It is estimated that about 10 lakh quacks are practicing allopathic medicine, out of which 4 lakh belong to practitioners of Indian Medicine (Ayurvedic, Sidha, Tibb and Unani). The health of the gullible people including poor, critically ill, women and children are at stake. Therefore, there is a greater need to act against quacks wherever any of us come across them.
Quacks can be divided amongst three basic categories as under :

Quacks with no qualification whatsoever.

Practitioners of Indian Medicine (Ayurvedic, Sidha, Tibb, Unani), Homeopathy, Naturopathy, commonly called Ayush, who are not qualified to practice Modern Medicine (Allopathy).

Practitioners of so called integrated Medicine, Alternative System of Medicine, electro-homeopathy, indo-allopathy etc. terms which do not exist in any Act.

There is acute lack of awareness amongst State Governments, the legislature(s), judiciary and even doctors themselves regarding threat to nation’s health from quackery and about non-entitlement of practitioners of Indian Medicine who are practicing Modern Medicine. The confusion has been compounded due to various contradictory Govt. and court orders.
Act& Rules has been framed by Central Govt. which lay down distinct area of practice of each system of medicine as under:
Medical Acts

Central Acts

Indian Medical Council Act 1956

Central Council of Indian Medicine Act 1970

Central Council of Homeopathic Medicine Act 1973

State
Register
Person register thereunder and

State Medical Register
Register Medical Practitioenrs

State Register of Indian Medicine
Register practitioners of Indian Medicine

Even a cursory scrutiny of the chart above, it will be apparent that the Central Medical Acts have laid down separate area of practice for each system of medicine. However, CCIM has used a clause “modern advances” in Section 2(e) of CCIM Act 1970 to interpret that BAMS/BUMS are entitled to practice Modern Medicine and CCIM have issued a notification/declaration accordingly. Hon’ble High Court of Kerala vide its order dated 12.12.2006 in Writ No.1260/2006 reaffirmed by the Hon’ble Supreme Court of India in Special Leave to appeal (C) Nos...CC.6116/2007 has ruled that the word “modern advances” contained in Section 2(e) of Act 1970 would be referable to modern advances made in respective fields of Ayurveda, Sidha and Unani. The learned judge has placed reliance upon Supreme Court order in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468). Hence, the modern advances mentioned in Section 2(e) of the Act of 1970 cannot be interpreted to mean allopathic Medicine.” Though CCIM has been requested to cancel their notification, they have not done it so far on the ground that they are seeking legal advice. Obviously, their ulterior motives appear to be questionable. It is blatant violation of courts order.
Second subterfuge adopted by practitioners of Indian Medicine is that provisions of Drugs and Cosmetics Act/Rules 1945 allow them to practice Modern Medicine. Unfortunately certain State Govts. have issued notifications under Drugs and Cosmetics Act/Rules in such vague words so as to appear that practice of Modern Medicine by practitioners of Indian Medicine has been permitted. Such notifications are altogether faulty in the eyes of Law. Such notification needs to be withdrawn by the Govt. of State immediately. Power to practice a system of medicine flows from the Central Acts under which one has acquired a qualification and the central or state register where one is registered in. Hon’ble Supreme Court has ruled in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468) that “The right to practice Modern Scientific Medicine or Indian System of Medicine cannot be based on the provisions of the Drug Rules and declarations made thereunder by State Governments”. State governments have been approached to rescind their notifications which run contrary to Indian Medical Council Act 1956.
Having not succeeded to take advantage of ambiguity in State Medical Acts and Drugs and Cosmetics Act and Rules some practitioners of Ayurvedic, Sidhaand, Unani and Tibb, commonly called Ayush, have concocted a fake name like integrated Medicine and practice Modern Medicine (Allopathy) under its grab. The Govt. has clarified that they have not recognized integrated system of Medicine and currently there is no proposal to develop integrated system of Medicine by Govt. of India. Even CCIM in their letter dated 5.12.2008 has announced that the term” Integrated System of Medicine” has not been defined in their Act and it is not one of the approved system of medicine in India. “The practitioners of Integrated System of Medicine are quacks and should be treated alike them.
Then there is a variety of fake medical degrees like electro-homeopathy, indo-allopathy etc. who call themselves Alternative System of Medicine and under this guise practice Modern Medicine. Alternative System of Medicine is not recognized by law. Since they are a danger to the nation, there is a need to take action against such quacks wherever we find them. In fact, practitioners of Ayurved, Sidh, Unani, Tibb keep jumping from their original system of medicine to integrated or Alternative System of Medicine just to keep practicing Modern Medicine under different façade. If required, they are not averse to concoct new system of Medicine just to avoid detection.
Hon’ble Supreme Court has ruled in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468) that “A harmonious reading of Section 15 of 1956 Act (Indian Medical Council Act) and section 17 of 1970 Act (Indian Medicine Council Act) leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act.” In another case titled Poonam Verma Vs. Aswin Paatel (AIR 1996 SC 2111), the Hon’ble Supreme Court has given a definition of a quack a “A person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knowledge or to put it differently a chariatan.” The same was reaffirmed by Supreme Court in Civil Appeal No.3541 of2002 in Martin E D’Souza vs Mohd Ishfaq and it was held that “a professional maybe held liable for negligence on the ground that he did not possessed of the requisite skill which he professes to have, thus a doctor who has qualification in Ayurvedic, Unani or homeopathic medicine will be liable if he prescribes allopathic treatment….”A reading of above court orders will make it abundantly clear that no person other than those possessing qualifications mentioned in First, Second and Third Schedule of Indian Medical Council Act 1956 and registered with State Medical Register under the provisions of Indian Medical Council Act 1956 can practice allopathic or the modern scientific system of medicine anywhere in India.
The main roadblock to eradication of quackery is CCIM which keeps issuing clarifications/notifications without any authority of gazette notification that practitioners of Indian Medicine are allowed to practice Modern Medicine. They are deliberately misguiding the Govt. authorities and courts so that confusion may continue. Many times they have misled the prosecutors themselves who then start advocating on their behalf. Misled by them, State Governments under Drug and Cosmetic Rules keep issuing notifications under 2(cc)iii & Cosmetic Rules 45 which appear to allow practitioners of Indian Medicine to practice Modern Medicine. Back they have elicited many court orders in their favour by misleading the courts. Neither Para-Medics nor quacks are allowed to use prefix of Doctor, however, CCIM has persuaded the courts to rule to the contrary. These endeavours of CCIM is simultaneously harming the Indian System of Medicine and defaming Modern Scientific Medicine. CCIM do not clarify that the practitioner of Indian Medicine are registered in State register of Indian Medicine and not State Medical register.
Supreme Court in case of Mukhtiar Chand Vs. State of Punjab and others has file that
“for the purposes of Clause iii of Rules of (ee) what is required is not the qualification in Modern Scientific System of medicine but

Declaration by the State Government

That a person is practicing modern scientific systems

And that is registered in a Medical Register of the State” (i.e. State Medical Register)

“A Supreme Court has further held “A notification can be faculty with only those requirements are not satisfied”.
Non of the practitioner of Indian System are registered in State Medical Register; practitioners of Indian System are registered with State Register of Indian Medicine. Hence, any notification issued by State Government for the purpose of Clause 2(ee) (iii) is faulty, in the eyes of Law it is illegal.
Supreme Court has further ruled ‘But after Sub-section (2) of section __ was inserted in the 1956 Act, with effect from 15.9.1964 which, inter-alia, provides that no person other than a medical practitioner enrolled on “State Medical Register” shall practice modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs be virtue of the declaration issued under the said Drug rules by implication, got obliterated.”
It was further field by the Supreme Court that 2(ee)iii is not repugnant to Medical Council Act 1956.
There is also complete apathy on the part of Govt. to eradicate quackery and though IMA/MCI have submitted a draft Anti Quackery Bill, the Govt. has not taken any action to place it before parliament. On the contrary Govt. keeps issuing assurances that the interests of unqualified health professionals will be protected to meet rural health requirements. This really emboldens the quacks who are assured of their position and encourages more to swell their ranks. Govt. has not carried out any survey of quacks though repeatedly insisted upon them. Fake Medical Institutions distributing fake medical degrees are prospering and multiplying under the patronage of Govt. functionaries and politicians and no action is taken against them even though they are reported to Govt. police.
The drug suppliers are also giving a helping hand to quacks by supplying drugs directly and send their medical representation to them to promote sale of their drugs. These drug suppliers stoop down to supply of drugs without cash memo also.
The Central Governments has laid down Indian Medical Council Act (MCI) which governs and regulates practice of Modern Medicine. The provisions of the Act are worded in crystal clear terms and there is no ambiguity whatsoever. However, when it comes to State Medical Acts, it has been conducted in terms which some times appear to be confusing. Further they do not implement changes in State Medical Acts in pursuance to changes in Indian Medical Council Act 1956.
The purpose of this compendium is not only to educate the doctors regarding anti quackery provisions but also to encourage them to give active support to IMA in fight against quackery. Whenever they come across a quack they must intimate the same to police, district authorities and always send a copy of your complaint to IMA. All doctors are requested to disseminate the information contained in this compendium to other doctors and to send copy of Govt. or Court orders to IMA which is not part of this compendium. Doctors must realize they are fighting against fraud perpetrated against common people who does not have means to fight quackery.
After insertion of Section 15(2) of Medical Council Act 1956 with effect from 15-9-1964 the right of non-allopathic practitioners i.e. practitioners of Indian System of Medicine got obliterated.
Section 2(ee) (iii) of drug rules as effected from 14-5-1960 was applicable of those practitioners who were already registered in State Medical Register i.e. State Medical Council (meant for MBBS only). Prior to a date on which a practitioners registered under Bombay Medical Act 1912 or under the Bombay Medical Practitioners Act 1938. Those were two exceptions, where, such practitioners were registered in Medical Register of a State. The said notification under Drug Rule 2(ee) (iii) was inserted to escape from rigors of Sub-section 15 of MCI Act 1956. In present scenario no one can get benefit of Section 2(ee) (iii), as none has been registered in State Medical Register after 1956 Act of MCI.
More over Indian Medical Degree Act 1916 (which is still operational) covers all registered degrees i.e. modern medicine, Indian System of Medicine, Homeopathic. The Western Medical Science (Modern Medicine) was defined to mean the Western method of allopathic medicine of obstetrics and surgeries but has excluded homeopathy, ayurvedic and Unani System of Medicine from its purview.
For any clarifications or queries, please feel free to contact the undersigned.

Dr.D.R.Rai
Hony. Secretary General
Indian Medical Association

Dr.V.N.Sharma
Former Chairman
IMA Stdg. Committee on Anti Quackery

IF OUR ESTEEMED MEMBERS FEEL THAT ANY JUDGEMENT/ ORDER / NOTICE BY ANY COURT OF LAW / DEPARTMENT / MINISTRY ON QUACKERY IS MISSED BY US BUT NEEDS TO BE INCORPORATED HERE, THEY ARE REQUESTED TO PROVIDE US AT IMA HEADQUARTERS ADDRESS OR EMAIL nationalpresident.imahq@gmail.com / inmedici@gmail.com

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